This article is therefore aimed at highlighting the role of the National Assembly in the Gambia by pointing out the powers and tools of accountability at its disposal as stipulated in the 1997 Constitution.

The hallmark of the 22-year dictatorship of the former dictator Yaya Jammeh’s regime was the blatant abuse of human rights and disregard of the rule of law. This has generated a culture of impunity where State agents particularly security personnel could arbitrarily arrest, detain and torture or cause a citizen to disappear or kill with impunity. This situation had therefore cultivated a climate of fear in which citizens faced life and death situation everyday as they decide to either obey or challenge the regime. That notwithstanding, Gambians finally voted out the dictatorship in the 1 December 2016 presidential elections but not without undergoing a stiff political impasse following the rejection of the results by Jammeh. For 60 days, the country was stuck in a stalemate that had triggered diplomatic intervention by the international community with a threat of military action to force Jammeh to concede to the will of the people. The impasse prompted the Economy Community of West African States (ECOWAS) to remove the president-elect Adama Barrow out of the Gambia for safety reasons and to have him sworn-in in Dakar, Senegal on 19 January 2017. Few days later on January 23 Yaya Jammeh finally left the Gambia to seek asylum in Equatorial Guinea.

Background

In its 22-year misrule, the Gambia first witnessed a mass uprising on 10 and 11 April 2000 when the Gambia Students Union sought to submit a petition to the vice president at the time Isatou Njie Saidy to demand justice for the rape of a schoolgirl by paramilitary personnel at a sports meeting at the Independence Stadium in Bakau (10 kilometres away from Banjul) and the killing of another schoolboy Ebrima Barry by fire service officers in the semi-urban town of Brikama (about 40 kilometres from Banjul). As the students assembled to proceed to the office of the vice president, they were met with the full force of well-armed paramilitary contingent in Kanifing. What ensued was a direct confrontation and shooting that resulted into the death of 16 schoolchildren including a Red Cross volunteer and a three-month old baby with many more sustaining injuries.

The incident in Kanifing then generated protests across the country which were quelled with heavily brutal crackdown by both the police and the military. In several towns such as Essau, Barra, Farafeni, Brikama and Janjanbureh in the regions, scores of schoolchildren were shot and injured while hundreds more were detained and tortured for weeks. Eighteen years later, tens of survivors are either wheelchair-bound or on crutches and generally experiencing various forms of pain and disability.

The second time Gambians decided to stage a peaceful protest was sixteen years later on 14 April 2016 when Solo Sandeng, a youth leader of the largest opposition party UDP together with a dozen activists demonstrated for electoral reforms in downtown Kanifing (the biggest city in the Gambia) at Westfield. Naturally the group was met with a barrage of paramilitary forces that arrested all of them immediately. Within 24 hours it became known that Solo was tortured to death and hurriedly buried in an obscure grave in the coastal village of Tanji. The rest of his colleagues were subjected to severe torture including sexual violence.

The April 14 protest triggered the leadership of his party to march to the nearest police station the next day April 15 to demand his body, dead or alive. But even before they reached the station, they were also met with severe police crackdown. The party leader Ousainou Darboe and tens of his executive members and supporters were detained at the central prisons pending charges few weeks later. Today, two years after that protest, about five of Solo’s colleagues have also died due to injuries from torture while many more are sick or in severe pain.

That mass arrest of the party leadership, supporters and citizens generally therefore gave rise to widespread demands for the opposition to coalesce for the December 2016 presidential election. After failing in many attempts in the past to form an opposition coalition, it became clear to everyone that only with a total opposition coalition could Gambians democratically remove the dictatorship. This realisation is informed by the fact that the regime was involved in electoral malpractices including interfering with the electoral commission in its favour amidst other widespread violations. In response Gambians had sought all means to remove the regime to no avail including the use of armed violence that over the past two decades the country witnessed several coup attempts as well as armed insurrections. Notable armed attacks to overthrow the regime came in 1996 in Farafeni, 1997 in Kartong and 2014 in Banjul where attackers (comprising former soldiers living abroad or Gambians serving in the US Army, with support from serving Gambian soldiers) actually entered State House in Banjul as Pres. Jammeh was out of the country, but fatally repelled. Several were caught and summarily executed while many more were detained, tortured and then court martialled and sentence to several years in jail.

The dictatorship did not only violently suppress civil and political rights, but as a consequence of that it also severely undermined the social and economic rights of Gambians. The blatant confiscation of private and community lands, properties and businesses by Pres. Jammeh was widespread and pervasive. Furthermore, the president also claimed to have a cure for HIV/AIDS, infertility, diabetes and many other diseases or health conditions for which scores of citizens were subjected to his treatment program leading to many deaths and high morbidity. The incidence of corruption and political patronage were entrenched to the point that, in practice there was no distinction between what belonged to the president and what belonged to the State. On many occasions, Jammeh had claimed to own the University of the Gambia, or the cameras of the national television or the vehicles that ministries use as well as claiming to be rich for many generations to come. Because of the way and manner he had personalised state institutions and resources, it meant that public institutions lacked the independence, professionalism and space to efficiently deliver public goods and services while citizens lack the space to hold them to account thus further aggravating the socio-economic conditions of the people. By 2016, the Gambia was one of the least developed countries of the world where 60% of the population live in poverty and one of the leading migrant producing nations in Africa.

Enter the New Dispensation

The government Pres. Adama Barrow came on the heels of a longstanding culture of abuse with scores of victims cutting across all strata of the society. Consequently the expectations and hope with which the people received the new dispensation was immensely huge and high. Even before he took office Candidate Barrow had said in his manifesto and campaigns that within six months of taking office he would repeal or reform all laws that infringe on fundamental rights and freedoms, undermine democracy and limit popular participation.

Since January 2017, there has been a largely open space in the Gambia where citizens actively enjoy their civil and political rights. Citizens have been able to speak out openly without fear of reprisal about issues in the society. Many more citizens continue to be bluntly critical, especially on social media, against the decisions and actions of the government in many ways. Radio stations and newspapers have been freely reporting on issues while in many instances citizens have protested in the streets against various issues or the government.

In May 2017 Kartong and Gunjur residents protested against the Chinese fishmeal company accusing it of polluting the environment with bad odour and dumping dead fish on the beach and liquid waste in the ocean. In Kololi (a neighbourhood in the Kanifing Municipality) the youths there also staged a peaceful demonstration against estate developers who were allocated community lands during the dictatorship. Since March 2017 residents in Bakoteh in the Kanifing Municipality have also been protesting at various times and in front of the mayor’s office against the longstanding dumpsite that releases hazardous fumes into the surrounding communities.

However, while there continues to be an open and free space for the exercise of civil and political rights, yet various decisions and actions by the new government have raised concern for the protection of human rights. For example, since taking office Barrow has not yet repealed or reformed any of the draconian laws he had promised to change during his campaign. Rather in November 2017, the Supreme Court of the Gambia went ahead to certify that the Public Order Act (POA) was in line with the constitution. Since 2009, the POA has been challenged for being unconstitutional because it contains provisions that give power to the Inspector General of Police to either grant or deny permit for protest. Observers and human rights activists had condemned the POA that it gives immense powers to the police that override the limits imposed by the constitution that guarantees the right to peaceful assembly and demonstration. In fact the Public Order Act was one of the laws targeted in Barrow’s manifestation for reform.

The Public Order Act was one piece of legislation that the former regime had consistently used to clampdown on citizens for merely exercising their civil liberties including engaging in political activity. It was because of the POA that in 2010 the opposition UDP’s campaign manager Femi Peters (late) was jailed for one year for organizing a political rally in Banjul without a police permit to use a public address system. Secondly it was because of this law that the UDP leader Ousainou Darboe and scores of his executive members and supporters were also jailed for three years in July 2016 for unlawful assembly when they marched to the police station to demand the body of their late party youth leader Solo Sandeng. Similarly it was because of the Pubic Order Act that the paramilitary forces were deployed against students in 2000 leading to the shooting to death of dozens.

Following violent riots in May 2017 by the youths in the communities of Farato (about 30km from Banjul) against the demolition of homes and in June 2017 in Kanilai (home village of the former dictator Jammeh) against the presence of ECOWAS military intervention forces in the community, it has now been noticed that the government appears to deny any form of protests. This came first in November 2017 when a youth movement, #OccupyWestfield sought a permit to protest against the poor electricity supply in the country. The police initially gave the permit only to withdraw it within 24 hours. Similarly in January 2018, a political science lecturer at the University of the Gambia Dr. Ismaila Ceesay was ‘invited’ to the police headquarters for questioning for comments he made in a newspaper interview. It turned out that when Dr. Ceesay arrived at the station, he ended up being detained overnight and then charged for ‘incitement to violence’. Following a public outcry mainly by students and the Gambian civil society, the police were forced to release him and drop the charges. These incidents, if anything to go by clearly show that the open and free space for human rights in the Gambia at the moment may not last long.

Even when the government had passed other laws that broadly speak to the promotion and protection of human rights yet there have been instances of inconsistencies that cause for concern. For example in December 2018 the government passed new laws setting up the Truth, Reconciliation and Reparation Commission, the Constitutional Review Commission and the National Human Rights Commission. These moves have been welcomed by activists, human rights organizations, development partners and citizens generally. However there have been concerns that the government has been selective in dealing with major human rights issues of the past. While the government was commended for opening investigations and prosecution into the murder of Solo Sandeng, many are concerned why similar action was not taken in the case of the April 10 and 11 students massacre or the murder of Deyda Hydara among others?

What is even more concerning to many has been the fact the new government has failed to repeal the Indemnity Act which as enacted in 2001 to exonerate public officials and security officers for their decisions and actions in the student massacre. The April 10 and 11 Commission of Inquiry held between May and August 2000 identified several officials and officers by name and rank for being responsible for the shooting of the students. Instead of prosecuting or disciplining those responsible as recommended by the Commission, the government rather went ahead to indemnify their actions by describing the incidents as a state of emergency. Thus when the new government came to power, the expectations generally have been that one of the first laws to undergo repeal would be the Indemnity Act to allow for the prosecution of perpetrators and compensation of victims. This has not happened yet.

In addition to the April 10 and 11 incident, there were also other incidents that many were of the opinion that the new government would open investigations into them in order to ensure justice. Some of these incidents include the mass killing of soldiers in November 1994 in the wake of an attempted coup, or the burning to death of the former finance minister Koro Ceesay in June 1995 as well as the shooting to death of veteran journalist Deyda Hydara in December 2004 including many cases of enforced disappearances and summary executions such as in August 2012 when nine inmates in the country’s major prison were killed.

It must however be noted that generally the president Adama Barrow continues to speak positively about protection of human rights. He has expressed his desire on many occasions that civil liberties will remain respected by his government. Marking his first anniversary in office, he said his government had removed the phenomenon of ‘management by fear’ by creating the enabling environment for the exercises of civil and political rights.

Conclusion

The civil and political rights situation in the Gambia today is certainly better than what it was during the dictatorship; at least for the foreseeable future. But so long as the draconian laws that infringe on civil and political rights remain in the statutes and the necessary constitutional and institutional reforms are not conducted, especially among security institutions, there remains the possibility that Gambians may encounter an erosion of their human rights. So far the government is not demonstrating the necessary urgency and commitment to these reforms. While the right political statements continue to be made by the leadership yet there has not been commensurate practical steps to not only refrain from infringing on rights but to also expand rights. Apart from the Supreme Court ruling on the POA and the denial of permits to protesters, there is now growing number of police checkpoints around the country reminiscent of the dictatorship.

Some analysts have contended that political expediency or lack of experience or poor leadership or the combination of all seem to have engulfed or preoccupied the new government, while, others have noted that, after all politicians remain the same, i.e. at the end of the day it is about seeking and maintaining power by any means. Time will tell.

Constitution building in the Gambia dates back to the colonial period particularly when the country became a full-fledged colony between 1894 and 1902. In order to ensure effective control over the Gambia the British had to develop various constitutions through which they built institutions to enforce their authority over the lands and people of the Gambia.

Two of the foremost institutions through which the colonialists governed the country were the Legislative Council and the Executive Council. The Legislative Council for the Gambia met for the first time in 1843. Since then various constitutions were created to expand and determine its mode of membership, i.e. either by selection, nomination or election. Usually membership was concentred on Europeans until 1883 when a Gambian, J.D. Richards was appointed into the body. But by 1947 a new constitution was created that allowed for the election of an African representative from the colony for which EF Small was elected for Banjul.

The Legislative Council was eventually abolished in 1960 to be replaced by a House of Representatives following the 1959 constitutional conference and the subsequent creation of a new constitution by Governor Edward Windley. That constitution established the House of Representatives consisting of 34 members, 19 of whom were directly elected. It also gave the right to the people of the protectorate for the first time to directly elect their representatives. It was this constitution that actually opened the floodgates for the journey towards Gambian Independence.

The constitutional development process continued in 1961 when another conference was held in Banjul from 4 – 11 May 1961. This led to the London constitutional conference which was held in the same year on July 24. It was these conferences that gave birth to the 1962 Constitution which set the stage for elections that year and constituted the House of Representatives thus; 25 seats for Protectorate, 7 seats for Colony and 4 Chiefs. Consequently the 1962 elections resulted in PPP winning 18 seats, UP 13 seats and DCA with 1 seat. The 1962 Constitution also created an Executive Council headed by the Governor, a prime minister, an attorney general and 8 other ministers.

The significance of the 1962 constitution was that it created 32-member representatives and set the motion for the Gambia to attain internal self-rule. Therefore when the PPP won the majority seats, the Governor appointed Jawara as Premier and asked him to form his cabinet. In October 1963 the colonialists gave the country full internal self-rule status and Jawara then became Prime Minister.

In the following year, 1964 the most significant constitutional conference was held in London where the subject matter was the independence of the Gambia. This conference led to the enactment of the Gambia Independence Act in December 1964 by the British Parliament with the title, ‘An Act to make provision for, and in connection with, the attainment by The Gambia of fully responsible status within the Commonwealth’.

The London conference agreed that the Gambia would become independent on 18 February 1965 on the basis that it will seek membership of the Commonwealth and that the Queen of England would also become the Queen of the Gambia. On the appointed date, at a huge colourful ceremony in Banjul the Union Jack was lowered and the Gambian flag was hoisted. Jawara was formally confirmed as Prime Minster and Sir John Paul was appointed as Governor-General. In 1966, Paul was replaced by Sir Farimang Singhateh as the Governor General.

From the foregoing it is clear that the Gambia was indeed not an Independent country by 1965 but a British dominion with internal self-government status. Hence the journey towards independence continued with two referendums on the question of being a republic. The first referendum was held in November 1965 but the ‘Yes Vote’ fell short of the two-thirds majority by only 758 votes. The second referendum was held in April 1970 where the two-thirds majority was met and the Gambia was declared an independent republic on 24 April 1970.

The result of that referendum meant that another constitutional process had to emerge leading to the creation of the 1970 Republican Constitution. However by then this constitution was already passed by the House of Representatives on 18 December 1969 but then assented to by the Queen of England on 24 April 1970. That constitution unified the office of Head of State into an Executive Presidency and abolished the office of the Governor General, as head of state and representative of the Queen of England. Jawara became the first President of the Republic and Sir Farimang Singhateh ceased to be Governor General.

There exist fundamental differences between the 1970 and 1997 constitutions. For example while Section 1 of the 1970 Constitution stated that the Gambia was a sovereign republic yet it did not establish on who resided that sovereignty. In the 1997 Constitution, section 1 subsection 2 clearly states that the sovereignty of the Gambia resides in the people of the Gambia and the legitimacy of the state is derived from the people. The 1970 Constitution did not have a preamble which is contained in the 1997 Constitution. While both constitutions have stipulated the fundamental rights and freedoms of Gambians, yet the 1997 constitution was more extensive and explicit under the Chapter Four. Furthermore the 1970 Constitution did not provide for the establishment of most state institutions as is the case in the 1997 Constitution. In fact the 1970 Constitution was enacted as an act of parliament and not subjected to a referendum as was the case with the 1997 Constitution. However the 1997 Constitution also leaves much to be desired especially given the uncountable amendments it has been subjected to over the period to satisfy the whims and caprices of former president Yaya Jammeh.

In building a new constitution for the Third Republic, major lessons must be learnt from both Independence constitutions to ensure that fundamental republican and democratic values, standards, institutions and processes are clearly provided and protected to ensure good governance. This includes presidential term limits, limitation of the powers of the president, expansion of the rights of citizens and strengthening the oversight functions of the parliament.

A constitution of any society does not only provide a legal basis for the existence of that body but also establishes the rights and obligations of the members individually as well as the body itself as a whole. A constitution further defines and sets the aims and objectives of that body as well as the values, standards, rules, processes and institutions of that society. Hence a constitution therefore is also a performance assessment and an accountability tool that determines the health and strength of any body and its members. For that matter a constitution is usually set in a kind of language and structure that makes it long-lasting, difficult to change and sustainable in order to cater for the present and the future needs of society at the same time.